Wednesday, August 19, 2009

Innocence And The Constitution

Yesterday the Supreme Court in an out of session ruling sent the case of Troy Davis back to a federal court for re-examination. The vote was 6 - 2 (Sotomayor was not a part of the ruling) with the two dissenters being Scalia And Thomas.

Troy Davis was convicted of murder 20 years ago and sentenced to die. By all accounts his trial was fair and followed procedure, but in the intervening years 7 of the witnesses that testified against him have recanted their testimony saying they were wrong - it wasn't him. In addition several of them have said that the killer was in fact the key witness against Davis in the crime. Davis's attorney has tried to get a court to listen to this but to no avail. The Supreme Court yesterday ruled that the lower court must take another look at the evidence. This is very unusual.

The interesting thing is that Scalia, in his dissent said essentially that there is nothing in the constitution that says if a fair trial has taken place we can't execute an innocent man.

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yes, Scalia's argument is that it doesn't matter if you're innocent; if your trial was fair and you were found guilty you get to die.

Legally I understand his reasoning and he is right in as much as the constitution does prohibit punishing the innocent, But I think we can all agree that to execute an innocent man qualifies as cruel and unusual.

Today Alan Dershowitz weighed in and offered perhaps the easiest, funniest, and clearest hypothetical example of the breadth of Scalia's argument.

If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

Scalia isn't an idiot, just a man who believes the law should always trump justice, and doesn't that make a wise jurist rather pointless.